Burden of Proof

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

TED OLSON, BUSH CAMPAIGN ATTORNEY: The two petitions being filed today contend that these practices are unconstitutional and that they should be stopped by the United States Supreme Court before further irreparable harm is done to the integrity of this election and to the rights of voters in Florida and everywhere else in the United States.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: The Miami board said that they weren't going to have enough time to finish the recount because of the Florida Supreme Court's deadline. We think that what they should do is devote the resources necessary so as not to disenfranchise the Dade County voters. We're hopeful that they will do that; we're hopeful that if they don't do that on their own, that the courts will direct them to do that.

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GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Back in the Florida Supreme Court. This time, the Gore legal team takes on Miami-Dade County.

And in Washington, in the U.S. Supreme Court, the Bush legal team takes on manual recounts.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: A happy Thanksgiving, and especially to Roger, who is having his dinner at CNN in the canteen. And a welcome to BURDEN OF PROOF.

Despite the national holiday, the legal battles over the presidential election heated up today. The Gore campaign is asking the Florida Supreme Court to order the Miami-Dade County Canvassing board to resume its hand recounts. The Bush team has taken its case to the U.S. Supreme Court. GOP lawyers want to reverse Tuesday's Florida Supreme Court ruling ordering the Florida secretary of state to count those manual recounts.

ROGER COSSACK, CO-HOST: Here is the latest figures on the hand recounts. Greta, I want you to pay very close attention because I want you to comment on this when we are done. George W. Bush right now has an official statewide lead of 930 votes in Florida. But canvassing boards say recounts have given Gore a net gain of 168 in Broward County, and Bush now has a 14-vote gain in Palm Beach County. So Bush's unofficial lead for now is 776.

The numbers released by the canvassing boards do not include about 1,900 disputed ballots in Broward County. Got me so far?

In Palm Beach County, nearly 300,000 ballots, which are counted, but not finalized, and as many as 10,000 disputed ballots, await the canvassing board's review.

Broward County is recounting contested ballots that have dimpled chads or ballots that have only one corner detached.

Palm Beach County is also recounting contested ballots that have dimpled chads, or have one corner detached, and if there is other evidence of voter intent.

Go ahead, Greta.

VAN SUSTEREN: Whatever that meant. And I'm sure you had that memorized. But based on the Florida Supreme Court's ruling, the recounted results must be submitted to the Florida secretary of state by 5:00 p.m. Eastern time Sunday to be included in the official state total.

Now joining us today to discuss the legal developments, from Los Angeles, law professor Viet Dinh.

COSSACK: And joining us here in Washington: Hadiza Buge (ph), law professor Victor Williams and Carlos Ozores (ph). And in the back: Ahmed Elbeshbeshy (ph) and Jonathon Chung (ph).

VAN SUSTEREN: And with us now from Tallahassee is one of the members of Gore's legal team, Ron Klain. We also asked for a member of the Bush legal team, but they were unable to join us today.

Ron, I am going to first to you. You have requested or at least the Florida Democratic Party has requested what is called a mandamus order, having the Florida Supreme Court order the recount to begin once again in Miami-Dade. What the court -- lower court said is that they agreed that the court should go forward, but they said they cannot compel the performance because it is impossible to perform. Aren't you stuck?

What the lower court said was that they couldn't order this to go forward. They recognize that Miami-Dade voted to do a hand count, and therefore, has a legal obligation to go forward. But I think they bucked up against the Supreme Court deadline, and didn't really know how to deal with that.

We've offered the Supreme Court a couple suggestions. The first one is for the court to order the count to go forward, and to see just how far they can get by Sunday at 5:00 p.m. You know every vote counts, and it is just another voter who gets their vote added to the total, that's a positive thing. Secondly, Greta...

VAN SUSTEREN: Let me just stop you for a second.

KLAIN: I'm sorry.

VAN SUSTEREN: When you say order the vote hand count to go forward, does this mean, in essence, sending the sheriffs out to pick up the county people who are doing this and haul them in on Thanksgiving day to start looking at the ballots? How does this work in your vision?

KLAIN: Well, I'm sure the board of canvassing gets an order from the Florida Supreme Court to resume the hand count, they will put in place the mechanism to do that. I doubt it would start today, it would probably start tomorrow morning, and that would give people three days before the deadline.

The point here is that the board of canvassing has a legal obligation to count these votes. People went to the polls on November 7th, they voted, and their votes haven't been tabulated yet. Having those votes counted, at least as many as can be counted by Sunday, is something that people in both parties should support.

There's no reason why, if there are ballots sitting in a pile, and they can be counted, they shouldn't be counted. And that's what we asked the Supreme Court for help with this morning.

COSSACK: Viet, let me get a little -- ask a practical question, and I know you are a practical man, you will give me the answer on this one. Now suppose that this court says, the Supreme Court of Florida says, OK, Miami-Dade, go ahead. We order you to start counting. Now somebody has to do the counting. Now the Miami-Dade Canvassing Board yesterday says, we are not counting anymore, we don't want to count anymore, we want to go home for Thanksgiving.

The people who actually do the counting are volunteers. Now the volunteers probably don't want to do anymore counting today or maybe not even tomorrow. So when they give this order that says start counting, who counts? I mean, how does this work? I mean, who is going to do it?

VIET DINH, LAW PROFESSOR: I think that's the practical consideration, also underlies the legal problem with Ron's and the Gore campaign's attempt to characterize this as a mandatory ministerial obligation on the part of the local officials. One, it rests entirely within their discretion under Florida law and under all of the interpretation of that law by the courts in Florida. And the practical reason that you highlight underscore why that legal obligation cannot be mandatory. After all, we are a country that elects the officials to do their job, and we trust them to do their job, and we ask for volunteers to do them.

VAN SUSTEREN: Here's the problem, Viet, according -- and I am reading from the Democratic brief -- is that the full manual count was mandated and that the Miami-Dade Canvassing Board had the obligation because they did the sampling, according to the statistical analysis, if you extrapolate it out to 100 percent, it could affect -- and I underline could, not certain -- but could effect the outcome of the election.

Now, you have got the Supreme Court putting this 5:00 p.m. deadline on it. Can the practical really ever trump the legal responsibility?

DINH: The problem there, Greta, is that the recount was not mandated, that is whether or not to hold a recount still rests within the discretion of the local canvassing boards, and that's a problem in Florida law that has plagued both sides of the debate.

VAN SUSTEREN: Let me ask you this.

KLAIN: Can I respond to that?

VAN SUSTEREN: Go ahead, Ron.

KLAIN: I respectfully disagree. The Third District Court of Appeals in Miami ruled last night, specifically, that the recount is mandatory under Florida law...

COSSACK: Ron, who is going to do it?

KLAIN: ... and that's the second highest court in the state.

COSSACK: Will they grab volunteers off the streets?

KLAIN: No, no, the mandate goes to board, the board will solicit volunteers. Look, volunteers have poured in from all over the state. Yesterday, there was a riot because volunteers were there to count, and they were told they couldn't count. So I don't think there's a problem with volunteers. This is no different legally -- Greta, could I just finish one point -- This is no different, legally, than if at 8:00 or 9:00 on election night, the counters in Dade had just walked out and said: You know, we just don't want to count, we want to go out and have a beer or whatever. The fact of the matter is they have a legal obligation to count and, therefore, the count should go forward.

COSSACK: Greta...

DINH: But there is no legal obligation to recount, Ron.

VAN SUSTEREN: Ron, let me just ask you a quick question. According to your brief, there are 10,750 votes that have never been counted. Is that right?

KLAIN: There is 10,750 votes that a machine could not count, and have never been counted by a person who could look at those votes and see if someone voted on those ballots, that's right.

COSSACK: OK, let's take a break. Up next, the Bush team takes its case to the United States Supreme Court. Stay with us and we will tell you what's going to happen.

(BEGIN LEGAL BRIEF)

In South Carolina, it is unlawful for any person to shoot any wild turkey on its roost between 30 minutes after sunset and 30 minutes before official sunrise.

By not abiding by the above, one could be found guilty of a misdemeanor and, upon conviction, fined not less than $50 nor more than $100 or imprisoned for not more than 30 days.

(END LEGAL BRIEF)

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(BEGIN VIDEO CLIP)

OLSON: We seek a reversal of yesterday's Florida Supreme Court decision that revised fundamental segments of Florida's duly enacted election law two weeks after the election took place. That decision violated federal law that requires that rules for the conduct of an election, the tabulation of votes and the resolution of disputes concerning an election be established before the election takes place and not afterwards or in the midst of the counting process.

(END VIDEO CLIP)

COSSACK: Lawyers for the Bush campaign filed two petitions with the United States Supreme Court yesterday. One asks to overturn a Florida Supreme Court ruling which forces the addition of late vote tallies, and the other asks to stop the manual recounts.

All right, Victor, play Supreme Court prognosticator, what are they going to do?

VICTOR WILLIAMS, LAW PROFESSOR: Well, I'll tell you what, the odds are against it. The odds for any surpetition (ph), are, of course, very low; 75 cases -- surpetitions are accepted. The Supreme Court gets in a pile of, what, 7,500. So about one out of 100 odds -- better odds at Vegas if you know how to...

VAN SUSTEREN: But this is rather unusual. I mean they to take -- you've got that on the flip side.

WILLIAMS: Absolutely; they will take it. They should take it for a couple of reasons. Against all odds, they will take this case -- they will actually take both cases; they will grant surpetition both to review the Supreme Court ruling, rewriting the law...

VAN SUSTEREN: You think so? I'll tell you -- do you know why I think maybe not? I think that this is going to be -- obviously, you know, it's always, you know, the voodoo of lawyers sitting around thinking what these nine justices are going to do. But the Florida election -- I mean, election law is typically a state matter. That's the first thing. And the second thing is -- the other one that's come up through the federal system, from the federal court in Miami and then Atlanta, tries to couch in terms of constitutional issues, but -- I mean, they at least meet the threshold test, but I bet the Supreme Court says, you handle your own problems, Florida.

WILLIAMS: Actually, I have to disagree. I believe they will grant cert -- it's not a guarantee because they can always default to the 11th Circuit and let the 11th Circuit do this for them, but I believe they will grant cert on both petitions -- both on the 11th circuit constitutional claims against the disparity in the way the votes are being tabulated.

Well, that's not right, they're not votes, quite frankly. A partially punched ballot is not a vote, it's not a vote cast.

VAN SUSTEREN: Wait a second, wait a second...

COSSACK: Victor, what they've claimed is -- they've only taken it up on one issue. The issue was the lack of standards in deciding how the votes should be counted.

VAN SUSTEREN: Wait a second, wait, stop right there. I don't feel like -- Ron, is that what it's up here on -- in the Supreme Court.

KLAIN: I'm sorry.

VAN SUSTEREN: What is the issue in the Supreme Court that the Bush camp has raised as far as you know?

KLAIN: Well, they've raised a couple of different issues. First, they've tried to get the Supreme Court to review the decision of the Florida Supreme Court, saying that the Florida Supreme Court -- as you heard Ted Olson say in that sound bite -- has allegedly rewritten the Florida election law and changed the rules in the middle of the game.

I find that argument almost laughable, coming -- first of all, because it is a question of Florida law, not federal constitutional law. Also I have to say it's laughable that the Bush campaign is out there talking about passing a law in Florida to abolish the election altogether and let the legislature pick the electors, as they're suing over whether or not changing deadline by a few days is a fundamental rewrite of the law.

COSSACK: All right, let me jump in here a second. Viet, it seems to me -- I looked at that petition, Viet. It seems to me they took it up on one issue, and one issue only; and that had to do with the lack of standards in how you count the vote -- the due process issue.

VAN SUSTEREN: No.

DINH: Well, a due process issue is the broad claim, but it has several sub-components to that, Roger. I think you're right, that the primary thrust is the standard with which to count the vote, but it's also the standards with which -- whether or not the recount should be granted; and part of that is the changing the rules of the game midway, as Ron said.

COSSACK: Are they going to take it Viet -- the Supreme Court -- what's your prediction? Victor says he thinks they'll take.

DINH: Well, you know, Victor is a wiser man than I, but I am very, very reluctant to make any attempts at reading the tea leaves of Supreme Court decision-making.

But this case does have an issue of national importance. As Justice Stevens pointed out in the case of John Anderson in the 1980s election, the voting for president and vice president is of critical national interest because those two offices are the only offices in the land that represent the whole of the United States. Everybody else represents some district or some state. And so, in that sense, the federal interest is stronger than in most elections and the state interest, correspondingly, is much weaken than other elections.

VAN SUSTEREN: Victor, obviously both campaigns have been accused of talking out of both sides of their mouths, both politically and legally; but, having said that, how do you reconcile the fact the Republican platform, in many ways, is one of states rights? I mean, let the states decide how they're handling things, and let the states handle their elections -- and now you run off to the federal system.

WILLIAMS: But Greta, we really decided this in the '50s and '60s, didn't we? Yes, the states have right. Yes, they can go about their business, until what? Until they impact a fundamental constitutional liberty or until they carry out an activity that is so partisan that it discriminates...

(CROSSTALK)

COSSACK: Is it a legal decision, though? I mean, it's a political decision and, obviously, you know, they say one thing, but when it's better for them legally, they do the other thing.

VAN SUSTEREN: Let's let Ron respond to Victor.

Ron, you want to get in?

KLAIN: If I could, I think Victor's citation of the civil rights cases from the '60s is interesting because I think the Bush position in this case turns that law on its head.

Look, they're going to federal court and trying to get a federal injunction against the counting of ballots in Florida. You know, the point of all the different Supreme Court civil rights cases was to enfranchise more people, to allow minorities to be registered to vote, to check state discretion, to prevent the franchise from being expanded -- and here what they are saying is that these counties cannot count their ballots under state law.

I think that's an absurd position as the...

COSSACK: Let's give Victor a chance to...

KLAIN: ... I don't know if the court will hear it or not, but I'm sure the court will reject it.

COSSACK: Ron, I want to give Victor a chance to respond before break.

WILLIAMS: They will hear it; they'll hear it because of the rule of four -- you only need four justices. And the civil rights movement carried over into the '60s for the right of franchise, absolutely right. But it's only the right of franchise, you have to be able to competently cast your ballot once you get into the voting booth, and the partially punched ballots are simply not cast ballots.

VAN SUSTEREN: Well, wait a second. Let me just stop you for a second. "Partially punched" -- the job of the canvassing board under Florida law is to determine the intent of the voter. If you punched and, let's say, partially punched meaning two sides.

COSSACK: It could be, though.

VAN SUSTEREN: It could be...

COSSACK: There's no law that says it couldn't be counted as a ballot.

VAN SUSTEREN: That's right, it doesn't say that. And listen, Texas does it, Illinois does it, Massachusetts does it, I'm not sure that that's exactly what the Supreme Court -- but I get the last word before break.

WILLIAMS: But to get to that first recount stage we have to prove that the tabulation machines weren't working. They were working; they didn't count these invalid ballots.

VAN SUSTEREN: All right..

COSSACK: So why are they having all these problems...

VAN SUSTEREN: ... it don't say machine, that says tabulation. But we need to take a break.

When we come back, we're going to get the latest from CNN's Frank Buckley in Miami.

(BEGIN Q&A)

Q: The American celebration of Thanksgiving began with the Pilgrims' feast in 1621. When did Thanksgiving become a national holiday?

A: In 1863, President Abraham Lincoln proclaimed the last Thursday in November as a day of national thanksgiving. In 1939, President Franklin Roosevelt moved the date up one week to the third Thursday in November. Congress moved it back to the fourth Thursday, where it remains today.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: The 2000 presidential race will go down as an historic test of the Constitution and the Electoral College. On this Thanksgiving holiday, some manual recounts are continuing. And the debate goes on about hanging chads, dimpled chads and butterfly ballots.

Joining us now from Miami is Florida's CNN correspondent Frank Buckley.

Frank, is there -- what is going on in Miami: anything at all?

FRANK BUCKLEY, CNN CORRESPONDENT: Nothing is happening in Miami. Actually, as you know, the recount stopped here yesterday. They did two full days of manual recounting. And then yesterday the canvassing board decided that it would stop, based on the fact that they felt they couldn't get through the ballots in time for the new Sunday deadline imposed by the state Supreme Court, so they stopped counting.

I can tell you that I just got off the phone with a county spokesman. They say that they are prepared, if necessary, to respond to the Gore campaign writ that's been filed in the state Supreme Court this morning. But so far, as far as he knew, they were not -- they had not been served or had not been notified.

VAN SUSTEREN: But, Frank, in the event that the Florida Supreme Court issues that writ of mandamus directing Miami-Dade to go forward, are they prepared to gather this afternoon, the canvassing board? Do they have the ability to bring in the volunteers to get this -- at least to get started?

BUCKLEY: Well, they are certainly aware of the situation. Everyone is aware of what is happening. Yes, I'm told that all three members of the canvassing board, at least, are in Miami, in the general Miami area. They are at home. They have not gone to the far- flung four corners of the world.

So, theoretically, yes, they could bring them together. As you know, there were some 25 -- there were 25 teams if they -- that were involved in the full recount. So if they had to do a full recount, it might be difficult to bring in all of those people -- and plus all of the observers as well.

COSSACK: Frank, was this -- was this a surprise that Miami-Dade just suddenly threw up its hands said: You know what? We don't want to count anymore. I mean, did you see this coming? And was this partisan? How do you describe this?

BUCKLEY: Roger, I felt completely blind-sided. Many of us just casually went up in the afternoon awaiting the reconvening of the board. We assumed that they were taking a while to reconvene after the protests that occurred in the morning, and that there was this whole decision about whether or not to have it in the tabulation room upstairs on the 19th floor, or to continue doing it on the 18th floor, where they were doing it. Finally, after all of the protests, they decided to bring it back to the 18th. So we simply went in. We were preparing for the beginning of the canvassing board again to start this process when they suddenly started having a hearing again to decide whether or not to proceed at all. So, you know, I think people were stunned when the canvassing board decided that they just wouldn't go forward.

(CROSSTALK)

COSSACK: Did they just sort of throw up their hands and say: You know, there's just not a chance that we are ever going to get this done by Sunday night, so, you know, why are we here? You know, until somebody figures out a better way to do this, happy Thanksgiving. I mean, is that what they did?

BUCKLEY: It wasn't -- it wasn't that casual. They did hear arguments from attorneys for both sides, for both parties involved. And they didn't say: You know, there's no way we could ever make it. David Leahy, the election supervisor, said: You know, I can't guarantee that I could get all -- get through all of the 10,750 under- vote ballots.

And it was his view, if he couldn't get through all of them, that it wasn't right to certify the vote.

COSSACK: All right, I'm afraid that's all the time we have. Happy Thanksgiving.

VAN SUSTEREN: Thank you.

COSSACK: I'm afraid that's all the time we have for today. Thanks to our guests. Thank you for watching. Tune in to "TALKBACK LIVE" this afternoon for the latest in the presidential race. And send your e-mail directly to Bobbie Battista and tune in at 3:00 p.m. Eastern Time.

VAN SUSTEREN: And CNN will continue to follow the events unfolding in Florida and at the U.S. Supreme Court. There will be a filing this afternoon by the Bush people. And, of course, we will be back tomorrow with another edition of BURDEN OF PROOF. Have a great Thanksgiving.

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